软法与中国现代法治的沟通

发布时间：2018-11-07 12:36

【摘要】：纵观世界,全球化的经济带来了全球性的问题,同时也带来了全球治理理论。立足中国,经济制度的快速发展,多样化社会问题的涌现,依法治国的不断推进,都给中国法制建设提出了新的要求和挑战。因此,完备法律制度以及完善法治建设成为法学理论研究中的一个热点话题。中国正处在社会转型期,将实行由计划经济体制向市场经济体制的改革,人们的生活方式、行为方式以及价值理念也会随之发生变化。而法律作为调整社会的有效手段和有力工具,不但要适应经济体制的转轨,还要适应人们思想的转变。在人们的主体意识逐渐增强,公众的利益诉求逐渐高涨的情形下,以硬法为主导的国家统治型管理模式已越来越表现出不足。而以软法为主要标志的治理型模式以其协商性和灵活性彰显出越来越大的优越性。然而由于种种原因,软法还未引起法学研究者的足够重视,法学界对软法的探究也还处在初级阶段。因此,本课题将以软法为研究对象,结合中国现代法治的现状,综合运用历史分析法、博弈论法、系统分析法以及社会学分析法来完成写作。首先,界定软法的概念并区别认识软法,力图对软法有一个总体的概括和认识。其次,从国际和国内两方面来追溯软法的形成,力图进一步把握软法的来龙去脉,加之分析软法的社会价值、政治价值、经济价值以及文化价值,以求引起人们对软法的重视,尤其是法学研究者的关注。再次,将软法置于中国现代法治建设的熔炉中,比较、博弈软法与硬法(国家制定法),以期进一步明确软法的优点和不足,从而使软法扬长避短。最后,通过研究软法、分析软法,力图完善法律,促进法制,启示法治。在中国这样一个多民族的文化大国,试图想通过单一的方式调节社会问题和社会矛盾是不切实际的,想完全依靠硬法来包罗万象,运筹帷幄也是不可能的。通过研究软法,我们更加清楚法治不是单纯的法制,更不能局限于硬法之治。有很多社会规范是植根于社会生活中,经过反复试用,并且已经被社会共同体所认可和接纳。因此,这些规范有着一定的权威性、稳定性以及延续性。所以说,要实现法律的实效,不可仅仅依靠国家制定法(硬法)的强制力,还需要依赖国家之外共同体的认同力。只有吸纳、转化社会中的规则为合法、成文的国家法,才可以创制出适合中国本土国情、蕴含中国本土精神的法律。这样的法律才可以更好地体现法律与人、法律与自然的和谐,才可以实现惩罚与教育之间的互动,才可以保障法律与社会的稳定。因此,在中国现代法治建设过程中研究软法有着不可估量的重大意义。
[Abstract]:Throughout the world, the global economy has brought global problems, but also brought the theory of global governance. Based on China, the rapid development of economic system, the emergence of diversified social problems, and the continuous promotion of the rule of law, all of them have put forward new requirements and challenges to the construction of China's legal system. Therefore, perfecting the legal system and improving the construction of the rule of law has become a hot topic in the study of legal theory. China is in a period of social transformation, it will carry out the reform from planned economy to market economy, and the way of life, behavior and value of people will also change with it. As an effective means and powerful tool to adjust the society, the law should not only adapt to the transition of economic system, but also adapt to the change of people's thinking. Under the situation that people's subjective consciousness is gradually strengthened and the public's interest demand is rising gradually, the national ruling management mode, which is dominated by hard law, has been more and more inadequate. The governance model with soft law as the main symbol shows more and more advantages because of its negotiation and flexibility. However, due to various reasons, soft law has not attracted enough attention from legal researchers, and the exploration of soft law is still in the primary stage. Therefore, this subject will take soft law as the research object, combine with the present situation of Chinese modern rule of law, synthetically use historical analysis method, game theory method, system analysis method and sociological analysis method to complete the writing. Firstly, it defines the concept of soft law and distinguishes between soft law and soft law, and tries to generalize and understand soft law as a whole. Secondly, from the international and domestic aspects to trace the formation of soft law, trying to further grasp the background of soft law, coupled with the analysis of soft law's social value, political value, economic value and cultural value, in order to cause people to pay attention to soft law. Especially the attention of legal researchers. Thirdly, the soft law is put into the melting pot of the construction of Chinese modern rule of law, and compared, the game soft law and the hard law (the state formulation law), in order to further clarify the advantages and disadvantages of the soft law, so as to make the soft law take advantage of the weak points and avoid the weaknesses. Finally, through studying soft law, analyzing soft law, trying to perfect law, promote legal system, enlighten rule of law. It is impractical to try to adjust social problems and social contradictions in a single way in a country of multi-national culture such as China. By studying soft law, we know more clearly that the rule of law is not a simple legal system, nor can it be confined to hard law governance. There are many social norms rooted in social life, after repeated trial, and has been recognized and accepted by the social community. Therefore, these norms have certain authority, stability and continuity. Therefore, in order to achieve the effectiveness of the law, we should not only rely on the coercive force of the national law (hard law), but also rely on the recognition of the community outside the country. Only by absorbing and transforming the rules of the society into legal and written national laws can we create laws suitable to the local conditions of China and contain the spirit of China. This kind of law can better reflect the harmony between law and man, the harmony between law and nature, the interaction between punishment and education, and the stability of law and society. Therefore, it is of great significance to study soft law in the process of China's modern legal construction.
【学位授予单位】：陕西师范大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D920.0

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